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Presentation of Defense Evidence at the Preliminary Hearing

Posted by Dmitry Gorin | Nov 06, 2023

A preliminary hearing provides essential tools for the defense team: to cross-examine the government's case, put on affirmative defense evidence, argue for reduced bail, and seek dismissal of charges.

Defense Evidence at the California Preliminary Hearing

When appropriate, our law firm uses the “prelim” stage to position the case for the trial court aggressively. Hence, the client faces the lowest possible criminal charges in front of the jury, is out of custody, and possibly has more negotiating leverage with the prosecutor's office to obtain a favorable pretrial settlement.

Under California law, a felony criminal case can reach the trial court in one of two ways.  First, similar to most federal criminal cases, the prosecutor can obtain a grand jury indictment.  The second and far more common avenue in state court is for the prosecutor to file a felony criminal complaint directly. 

The complaint does not establish probable cause or create general jurisdiction for the Superior Court to try the defendant.  A defendant charged by complaint has a right to a preliminary hearing, or “prelim,” which is a probable cause determination by a judge

If the judge finds sufficient evidence to establish probable cause, they “bind over” or “hold to answer” the defendant, who is re-arraigned in the trial court.


Preliminary hearings are similar to bench trials in many respects.  They feature live direct and cross-examination of witnesses; the rules of evidence (though relaxed in some respects) apply; the proceeding is adversarial; etc.  However, the stakes for the defendant are substantially lower. 

The defendant cannot suffer a conviction at a prelim.  The most important rights the defendant enjoys – to file motions, to ask questions of essential witnesses, to demand discovery from the government – are not waived or forfeited just because they are not asserted at prelim. 

For this reason, and likely because of the substantially lower burden of proof – probable cause vs. beyond a reasonable doubt – some practitioners fall into the habit of regarding the procedure as “just a prelim,” meaning a routine, low-stakes hearing deserving of far less attention than a trial.

Weeding Our Unsupported Charges

Case law instructs otherwise.  “The preliminary examination is not merely a pretrial hearing.  Rather, it is a proceeding designed to weed out groundless or unsupported charges of grave offenses and to relieve the accused of the degradation and expense of a criminal trial.”  (Bullock v. Superior Court of Contra Costa County (2020) 51 Cal. App.5th 134, 145–146, internal citations and quotation marks omitted.) 

At the preliminary hearing, the defendant enjoys “fundamental procedural rights” that are “derived from our earliest criminal legislation (Stats.1851, ch. 29, ss 153, 159) and have remained unchanged since the codification of the Penal Code in 1872.”  (Jennings v. Superior Court (1967) 66 Cal.2d 867, 875.)  For example, a defendant may move to suppress evidence based on an unconstitutional search or seizure under Penal Code 1538.5 PC at the preliminary hearing.

Present Evidence and Testimony

 Perhaps most important among these rights, the defendant must be permitted to present evidence and testimony at the preliminary hearing to the extent that it is “reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.”  Penal Code 866(a) PC. 

Denial of this right, either by refusing to allow the defendant to call appropriate witnesses or by limiting cross-examination of the prosecution's witnesses, is not harmless because other evidence is sufficient to establish probable cause.  (Jennings, supra, at 880.) 

Although not explicitly required under Section 866, good practice suggests that defense counsel notice their intent to call witnesses and provide a written offer of proof as to each anticipated witness sufficient to establish the nature of their testimony and how it complies with the three categories in the statute:

  • to establish an affirmative defense,
  • to negate an element, or
  • to impeach a prosecution witness. 

Note, however, that with a minimal amount of creative argumentation, nearly any witness' testimony that is relevant to the case could be characterized as accomplishing one, or more than one, of those purposes. 

In a murder case, the testimony of the defendant's friend that he received death threats from the victim before the date of the murder might be relevant to negate the element of malice or to establish the affirmative defense of self-defense. 

In a vehicular manslaughter case, a forensic accident reconstruction expert might be pertinent to impeach the testimony of a testifying police officer about the likely speed or position of an involved vehicle.

Revealing Too Much Evidence

Some lawyers believe that revealing too much evidence at the preliminary hearing is not a good strategy and it is better to await a jury trial. In some instances, that may be the best approach. 

However, as the following examples demonstrate, the presentation of defense evidence at a preliminary hearing sometimes avoids the uncertainty and costs of a jury trial:

  • (a) college student accused of shooting at a police officer – attempted murder charges reduced to assault after presentation of a blood alcohol expert and psychiatric testimony;
  • (b) a black belt accused of causing great bodily injury at a party – felony reduced to a misdemeanor and dismissed after testimony from percipient defense witness;
  • (c) client accused of murder released on reduced bail after extensive evidence of provocation and heat of passion. Had any of these defendants been indicted by a grand jury, the first time they would have had the right to “fight the case” and dispute the evidence would have been at a jury trial.

Even if the preliminary hearing court denies the defense request to present evidence, that issue itself can be litigated in the first instance in a motion to dismiss the charges under Penal Code 995, which will be heard by the trial court, or in the second instance by the Court of Appeals challenging the improper denial of the Section 995 motion. 

Again, the teaching of Jennings and other cases is that the preliminary hearing is not “just a prelim.”  It is the defense's first and sometimes, given that most cases resolve short of trial, the only opportunity to challenge the government's evidence and present defense evidence meaningfully. 

A skillfully litigated preliminary hearing can clarify the issues in the case, alert both parties to the relative strengths and weaknesses in their evidence, and often lead to a negotiated resolution in the trial court. Contact our California criminal defense lawyers for a case review. Eisner Gorin LLP has offices in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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